The National Council of Young Mens Christian Association of Papua New Guinea (Inc) v Firms Services Limited Trading As Rageau Manua & Kikira Lawyers and Niumi Warkia and Rhonda Owane and Westpac Bank (PNG) Limited and The Registrar Of Titles (2010) N4569

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 01 October 2010
• Citation: (2010) N4569
• Docket Number: OS NO. 305 of 2010
• Year: 2010

Full Title: OS NO. 305 of 2010; The National Council of Young Mens Christian Association of Papua New Guinea (Inc) v Firms Services Limited Trading As Rageau Manua & Kikira Lawyers and Niumi Warkia and Rhonda Owane and Westpac Bank (PNG) Limited and The Registrar Of Titles (2010) N4569

National Court: Gabi J

Judgment Delivered: 1 October 2010

CONVEYANCING—contract of sale and transfer of land by second and third defendants holding themselves out as executives of plaintiff—sale and transfer of land facilitated by first defendants - allegations of fraud involved in transactions—wrong mode of commencing proceedings—proceedings to be initiated by writ of summons—both application seeking to amend originating summons and to set aside ex parte order dismissed—originating summons converted to pleadings—plaintiffs to file statement of claim—defendants to file defence and/or cross-claim pursuant to National Court Rules

Facts:

The brief facts are that the second and third defendants, holding themselves out as Treasurer and Acting Secretary respectively of the plaintiff, and the first defendant executed a Contract of Sale of Land and Transfer on 5th March 2009 in respect of a piece of land situated at s104, Allotment 6, Lae, Morobe Province, contained in State Lease Volume 79 Folio 118. The first defendant facilitated the conveyance. It is alleged that at the time of sale the Board members of the plaintiff were Henry Pital as Chairman, Francis ToMangana as General Secretary, Andrew Kuloko, John Ilam and Dotti Kero as ordinary Board members. The plaintiff’s case is that the second and third defendants, who hold no official positions in the Board of the plaintiff, had no authority to enter into a contract of Sale of Land and Transfer with the first defendant. The sale and transfer of the property to the first defendant was unlawful and fraudulent and the registration of the transfer of title of the property in favour of the first defendant may be set aside pursuant to s33 of the Land Registration Act. The plaintiff is alleging fraud in the sale of land and transfer of title.

There are two applications before the Court; one by the plaintiff for leave to amend the Originating Summons filed on 16th June 2010, and the other by the first defendant to set aside or discharge the ex-parte injunction granted on 17th June 2010 and to dismiss the entire proceeding for disclosing no cause of action.

Held:

1. Both applications are dismissed;

2. The Originating Summons filed on 16th June 2010 is converted to pleadings;

3. The plaintiff shall file a Statement of Claim within the next 30 days; thereafter, the pleadings shall take their normal course, by the defendants filing their Defence and Cross-Claim, if any, under the prescribed time period as stipulated by the National Court Rules and for pleadings to continue thereafter;

4. Each party shall pay their own costs of these applications;

Cases Cited

B Fortunaso Ltd v Bank of South Pacific Ltd, Public Officers Superannuation Board, State Services and Statutory Authorities Superannuation Fund [1992] PNGLR 275; Dent vs. Thomas Kavali [1981] PNGLR 488 at 490; Dent v Kavali [1981] PNGLR 488; Mainland Holdings Ltd v Paul Robert Stobbs (2003) N2522; Mark Ekepa v William Gaupe (2004) N2694; Pondo v Mamun Investments Pty Ltd [1991] PNGLR 337; NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135; Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988–89] PNGLR 425; Pacific Native Timbers (PNG) Ltd v Andrew Donaldson (2005) N2933; Patterson...